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8 Ill.L.R. 77 (1913-1914)
Problem of Proof

handle is hein.journals/illlr8 and id is 85 raw text is: ILLINOIS. LAW REVIEW Volume VIII JUNE, 1913 Number 2 THE PROBLEM OF PROOF' By JOHN H. WIGMORE.2 This article aspires to propose, though in tentative form only, a novum organurn for the study of Judicial Evidence. The study of the principles of Evidence, for a lawyer, falls into two distinct parts. One is Proof in the general sense,--the part concerned with the ratiocinative process of contentious per- suasion,-mind to mind, counsel to juror, each partisan seeking to move the mind of the tribunal. The other part is Admissibility,- the procedural rules devised by law, and based on litigious exper- ience and tradition, to guard the tribunal (particularly the jury) against erroneous persuasion. Hitherto, the latter has loomed larg- est in our formal studies,-has, in fact, monopolized them; while the former, virtually ignored, has been left to the chances of later acquisition, casual and emphatic, in the course of practice. Here we have been wrong; and in two ways: For one thing, there is, and there must be, a probative science- the principles of proof-independent of the artificial rules of pro- cedure; hence, it can be and should be studied. This science, to be sure, may as yet be imperfectly formulated or even incapable of formulation. But all the more need is there to begin in earnest to investigate and develop it. Furthermore, this process of Proof 1. This is a chapter from a compilation shortly to appear, entitled The Principles of Judicial Proof, as contained in Logic, Psychology and General Experience, and illustrated in Judicial Trials. The chapter here offered is the final one, and represents the objective to which the prior portions are directed. The author will be glad to receive com- ments on the method proposed. He adds that several other methods have been devised but rejected by him, and that this one, like Sir Frank Lock- wood's celebrated but unsuccessful alibi, seems to be the best of the lot, at any rate. 2. Professor of Law in Northwestern University; author of A Treatise on Evidence; Pocket Code of Evidence, etc.

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